Girard v. State

• Decision Date: 14 April 1982
• Docket Number: No. 61300,No. 1,61300,1
• Citation: 631 S.W.2d 162
• Parties: Larry GIRARD, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 162

631 S.W.2d 162

Larry GIRARD, Appellant, v. The STATE of Texas, Appellee.

No. 61300.

Court of Criminal Appeals of Texas, Panel No. 1.

April 14, 1982.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Dist. Atty. and John H. Hagler, Dan Garrigan and Ron Poole, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, CLINTON and McCORMICK, JJ.

OPINION

ROBERTS, Judge.

A jury found the appellant guilty of aggravated robbery and assessed his punishment of 25 years confinement. He questions the sufficiency of the evidence.

In this offense a jeweler was robbed. The offense began with the jeweler's teenaged sons being taken hostage. The boys were at home in Farmer's Branch when two men (Barnes and Redrick) who were not masked entered the house, tied them up, and blindfolded them. A third man then came in. The jeweler came home about 20 minutes later to find the men waiting for him with guns. Only one of the three men was wearing a mask and gloves; it was the State's theory that the appellant was this masked man. Of course, the jeweler could not identify the masked man; he could only say that the appellant was similar to the masked man in height (6'2 or 6'3 ) and build (athletic).

After taking some jewelry and money, the robbers had the jeweler view his sons and told him that the boys' lives depended on his cooperation. The jeweler then was forced to go back to his jewelry store with Barnes and Redrick. He was told that the masked man was staying at the house with the boys and that, if he cooperated at the store, a call would be made and the boys would be released. (In fact, the masked man apparently left the house quickly, for he was gone when the jeweler's wife got home about 5 minutes later.)

The jeweler's store was in northwest Dallas, about 21/2 or 3 miles from his house. The jeweler gave Barnes and Redrick his jewelry and was tied up. The time was "approaching a quarter till nine." Barnes and Redrick fled in the jeweler's truck. It was found abandoned about a mile away.

At about 9:16 the appellant called a friend, Bogard, on the telephone and told him to come to the appellant's apartment for a Christmas present. Bogard arrived at the appellant's apartment in Richardson within 5 or 10 minutes. The appellant gave him a watch which had been taken from the jewelry store and a necklace which had been taken from the jeweler's house.

The appellant recognizes that unexplained possession of recently stolen property is a circumstance of guilt in a prosecution for robbery. Batiste v. State, 464 S.W.2d 149 (Tex.Cr.App.1971). His argument is that the evidence "does not exclude every other reasonable hypothesis except the defendant's guilt" because "this interval (between the robbery and the giving of the Christmas gifts) was not long enough to allow for what must have taken place under the State's theory:" namely, a rendezvous and an exchange of items. He also argues that there were "inconsistencies" in the State's case, such as the fact that no incriminating evidence was found in the appellant's apartment. He also argues that there were two reasonable hypotheses other than the appellant's guilt: that a third person was the masked man who gave the Christmas gifts to Bogard, or that Bogard himself was the masked man.

All these arguments are fallacious, and they are inconsistent with the role of an appellate court in reviewing the sufficiency of evidence. Our task is not to ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt; it is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 614 S.W.2d 155, 159 (Tex.Cr.App.1981). In circumstantial evidence cases, this test is translated into the requirement that the evidence exclude every reasonable hypothesis other than guilt. Id., n. 5.

The appellant's argument that it was "improbable" that the robbers could have rendezvoused and exchanged items, so that he could have given away some of the loot within 45 minutes, is one for the jury. They apparently rejected it, and a rational trier of the facts would have been justified in doing so in light of the short distances which apparently had to be traveled. The same is true of the "inconsistencies," which really are suggestions that certain incriminating evidence was not found, rather than evidence which actually was inconsistent with guilt.

The suggestions that the masked man could have been Bogard or a third person, are not "reasonable hypotheses other than guilt." This test of circumstantial evidence does not permit the alteration of the evidence to fit the hypothesis; obviously, there always will be a hypothesis of innocence if inculpatory evidence such as Bogard's testimony can be rejected. The correct procedure involves accepting the inculpatory circumstances, such as Bogard's testimony, and then asking if there is a reasonable hypothesis other than guilt which also would account for such circumstances.

In this case, the fact that the appellant was shown by Bogard's testimony to have been in possession of the loot so soon after the robbery was an inculpatory circumstance. Generally, the shorter the interval between the theft and the possession, the stronger is the circumstance (although the cases will vary according to such factors as the ease with which such property can be transferred). See Hardage v. State, 552 S.W.2d 837, 840 (Tex.Cr.App.1977). We hold that this very recent unexplained possession, together with the fact of the similarity of appearance and the fact that the appellant was a companion of at least one of the...